Exhibit 10.44


 


AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT


 


This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), is dated as of June 13, 2008, by and among
Vyyo Inc., a Delaware corporation (the “Company”), and
the undersigned Investors (each, an “Investor,” and
collectively, the “Investors”).


 


WHEREAS:


 


A.                                   In connection with
the Securities Purchase Agreements dated March 18, 2006, March 28,
2007, and June 13, 2008 (collectively, the “Securities
Purchase Agreements”) by and among the parties hereto, as
applicable, the Company has agreed, upon the terms and subject to the
conditions set forth in the Securities Purchase Agreements, to issue and sell
to the Investors:  (i) shares of the
Company’s common stock (“Common Shares”),
par value $0.0001 per share, (ii) convertible notes of the Company,
including those issued with even date hereof (the “Convertible
Notes”) which will, among other things, be convertible into shares
of Common Stock (the “Conversion Shares”)
in accordance with the terms of the Convertible Notes, and (iii) Warrants
(the “Warrants”) have been exercised to
purchase additional shares of Common Shares (as exercised collectively, the “Warrant Shares”);


 


B.                                     Goldman Sachs
Investment Partners Master Fund, L.P. (“Goldman”)
possesses registration rights and other rights pursuant to an Amended and
Restated Registration Rights Agreement dated as of March 28, 2007, between
the Company and Goldman (the “Prior Agreement”);


 


C.                                     Goldman is a
Required Holder (as defined in the Prior Agreement), and desires to terminate
the Prior Agreement and to accept the rights created pursuant hereto in lieu of
the rights granted to it under the Prior Agreement; and


 


D.                                    The Investors are
parties to the Securities Purchase Agreement of even date herewith among the
Company and the Investors, certain of the Company’s and such Investors’
obligations under which are conditioned upon the execution and delivery of this
Agreement by such Investors and the Company.


 


NOW, THEREFORE, in
consideration of the mutual promises and the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and each of the Investors hereby agree as
follows:


 


1.                                       Definitions.


 


Capitalized terms
used herein and not otherwise defined herein shall have the respective meanings
set forth in the Securities Purchase Agreements.  As used in this Agreement, the following
terms shall have the following meanings:


 


(a)                                  “Business Day” means any day other than
Saturday, Sunday or any other day on which commercial banks in The City of New
York are authorized or required by law to remain closed.


 

















 


(b)                                 “Closing Date” shall mean the date of this
Agreement.


 


(c)                                  “Effective Date” means the date the
Registration Statement (as defined below) has been declared effective by the
SEC.


 


(d)                                 “Effectiveness Deadline” means the date
which is one hundred and eighty (180) days after the after the Closing Date.


 


(e)                                  “Investor” means an Investor or any
transferee or assignee thereof to whom an Investor assigns its rights under
this Agreement and who agrees to become bound by the provisions of this
Agreement in accordance with Section 12 and any transferee or assignee
thereof to whom a transferee or assignee assigns its rights under this
Agreement and who agrees to become bound by the provisions of this Agreement in
accordance with Section 12.


 


(f)                                    “Person” means an individual, a limited
liability company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or agency
thereof.


 


(g)                                 “register,” “registered,” and “registration”
refer to a registration effected by preparing and filing one or more
Registration Statements in compliance with the Securities Act and pursuant to Rule 415
and the declaration or ordering of effectiveness of such Registration Statement(s) by
the SEC (as defined below).


 


(h)                                 “Registrable Securities” means (i) the
Common Shares, (ii) the Conversion Shares issued or issuable upon
conversion of the Convertible Notes, (iii) the Warrant Shares issued upon
exercise of the Warrants and (iv) any share capital of the Company issued
or issuable with respect to the Common Shares, Conversion Shares or the Warrant
Shares as a result of any stock split, stock dividend, recapitalization,
exchange or similar event or otherwise, without regard to any limitations on
conversions of the Convertible Notes or exercises of the Warrants; provided
that, such Shares will not be deemed to be “Registrable Securities” if
such Shares are sold or sellable under Rule 144 without restriction of the
volume limitations of Rule 144(e).


 


(i)                                     “Registration Statement” means a
registration statement or registration statements of the Company filed under
the Securities Act covering the Registrable Securities.


 


(j)                                     “Required Holders” means the holders of at
least a majority of the outstanding Registrable Securities.


 


(k)                                  “Rule 415” means Rule 415 under
the Securities Act or any successor rule providing for offering securities
on a continuous or delayed basis.


 


(l)                                     “SEC” means the United States Securities and
Exchange Commission.


 


(m)                               “Securities Act” means the Securities Act of
1933, as amended.


 


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2.                                       Request
for Registration.


 


(a)                                  If
the Company’s applicable Registrable Securities are eligible for listing on,
and approved for listing by, any Eligible Market, and if the Company shall
receive at any time after June 1, 2010 a written request from the Required
Holders that the Company file a Registration Statement registering shares with
an aggregate public offering price that would, net of underwriting discounts
and commissions, exceed $10,000,000, then the Company shall, within ten (10) days
of the receipt thereof, give written notice of such request to all Investors
and shall, subject to the limitations of subsection 2(b), use its commercially
reasonable efforts to effect as soon as practicable, and in any event within 60
days of the receipt of such request, the registration under the Securities Act
on Form S-1 (or any comparable successor form) of all Registrable
Securities which the Investors request to be registered, as specified by notice
given by such Investors to the Company within twenty (20) days of the mailing
of such notice by the Company in accordance with Section 11.


 


(b)                                 If
the Investors initiating the registration request hereunder (“Initiating Investors”) intend to distribute
the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to this Section 2(b) and the Company shall include such
information in the written notice referred to in Section 2(a).  The underwriter will be selected by the
Company and shall be acceptable to a majority in interest of the Initiating
Investors.  In such event, the right of
any Investor to include its Registrable Securities in such registration shall
be conditioned upon such Investor’s participation in such underwriting and the
inclusion of such Investor’s Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Initiating Investors
and such Investor) to the extent provided herein.  All Investors proposing to distribute their
securities through such underwriting shall, together with the Company, enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting. 
Notwithstanding any other provision of this Section 2(b), if the
underwriter advises the Initiating Investors in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Initiating Investors shall so advise all Investors holding Registrable
Securities which would otherwise be underwritten pursuant hereto, and the
number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all holders thereof, including the
Initiating Investors, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each holder; provided, however,
that the number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all other securities are first
entirely excluded from the underwriting. 
If any Investor would thus be entitled to include more securities than
such Investor requested to be registered, the excess shall be allocated among
the other remaining requesting Investors in the manner described in the
immediately preceding sentence.


 


(c)                                  Notwithstanding
the foregoing, if the Company shall furnish to Investors requesting a
Registration Statement pursuant to this Section 2, a certificate signed by
the Chief Executive Officer of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such Registration Statement
to be filed owing to a material pending transaction or 


 


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development and it is therefore
essential to defer the filing of such Registration Statement, the Company shall
have the right to defer taking action with respect to such filing for a period
of not more than ninety (90) days after receipt of the request of the Initiating
Investors; provided, however, that the Company may not utilize
this right more than once in any twelve (12)- month period.


 


(d)                                 In
addition, the Company shall not be obligated to effect, or to take any action
to effect, any registration pursuant to this Section 2:


 


(i)                                     in
any particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such registration,
qualification or compliance, unless the Company is already subject to service
in such jurisdiction and except as may be required by the Securities Act;


 


(ii)                                  after
the Company has effected two such (2) registrations on behalf of the
Investors pursuant to this Section 2. 
For purposes of this paragraph, a Registration Statement shall not be counted
until such time as such Registration Statement has been declared effective by
the SEC, unless the Initiating Investors withdraw their request for such
registration other than as a result of material adverse information concerning
the business or financial condition of the Company which was not known to the
Initiating Investors prior to the date on which such registration was requested
and elect not to pay the registration expenses therefor;


 


(iii)                               during
the ninety (90) day period prior to the Company’s good faith estimate of the
date of filing of, and ending on a date one hundred eighty (180) days after the
effective date of, a Company initiated registration subject to Section 3
hereof; provided that the Company is actively employing in good faith its
commercially reasonable efforts to cause such registration statement to become
effective and that the Company’s estimate of the date of filing such
registration statement is made in good faith; or


 


(iv)                              if
the Initiating Investors propose to dispose of shares of Registrable Securities
that may be immediately registered on Form S-3 pursuant to a request made
pursuant to Section 4 below.


 


3.                                       Company
Registration.  If (but without any
obligation to do so) the Company proposes to register (including for this purpose
a registration effected by the Company for stockholders other than the
Investors) any of its stock or other securities under the Securities Act in
connection with the public offering of such securities solely for cash (other
than a registration relating solely to the sale of securities to participants
in a Company stock plan, a registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities or a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities which are also being registered),
the Company shall, at such time, promptly give each Investor written notice of
such registration.  Upon the written
request of each Investor given within twenty (20) days after mailing of such
notice by the Company in accordance with Section 15, the Company shall,
subject to the provisions of Section 6(q), use its 


 


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commercially reasonable efforts
to cause to be registered under the Securities Act all of the Registrable
Securities that each such Investor has requested to be registered; provided
that the Company shall have the right to postpone or withdraw any
registration statement pursuant to this Section 3 without obligation to
any Investors.


 


4.                                       Form S-3
Registration.  In case the Company
shall receive from any Investor or Investors a written request or requests that
the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Investor or Investors, the Company will:


 


(a)                                  promptly
give written notice of the proposed registration, and any related qualification
or compliance, to all other Investors;


 


(b)                                 as
soon as practicable, effect such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Investor’s or Investors’
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any other Investor joining in
such request as are specified in a written request given within 15 days after
receipt of such written notice from the Company; provided, however,
that the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this Section 4: (1) if Form S-3
is not available for such offering by the Investors; (2) if the Investors,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public (net of any
underwriters’ discounts or commissions) of less than $2,000,000; (3) if
the Company shall furnish to the Investors a certificate signed by the Chief
Executive Officer of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company and its stockholders for such Form S-3 Registration to be effected
at such time owing to a material pending transaction or development, in which
event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than ninety (90) days after
receipt of the request of the Investor or Investors under this Section 4; provided,
however, that the Company shall not utilize this right more than once in
any twelve (12)- month period; (4) if the Company has, within the
twelve (12) month period preceding the date of such request, already
effected two (2) registrations on Form S-3 for the Investors pursuant
to this Section 4; (5) in any particular jurisdiction in which the
Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance or (6) during the period ending one hundred eighty (180) days
after the effective date of a registration statement subject to Section 3;
and


 


(c)                                  subject
to the foregoing, the Company shall file a registration statement covering the
Registrable Securities and other securities so requested to be registered as
soon as practicable after receipt of the request or requests of the
Investors.  Registrations effected
pursuant to this Section 4 are in addition to, and not in lieu of, their
right to registration under Sections 2 and 3 and shall not be counted as
demands for registration or registrations effected pursuant to Sections 2 or 3,
respectively.


 


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5.                                       Legal
Counsel.  Subject to Section 8
hereof, the Required Holders shall have the right to select one legal counsel
to review and oversee any registration pursuant to this Section 5 (“Legal Counsel”), which shall be Proskauer Rose LLP or such
other counsel as thereafter designated by the Required Holders.  The Company and Legal Counsel shall
reasonably cooperate with each other in performing the Company’s obligations
under this Agreement.


 


6.                                       Related
Obligations.


 


At such time
as the Company is obligated to file a Registration Statement with the SEC
pursuant to Sections 2, 3, or 4, the Company will use commercially reasonable
efforts to effect the registration of the Registrable Securities in accordance
with the intended method of disposition thereof and, pursuant thereto, the
Company shall have the following obligations:


 


(a)                                  Subject
to sub-section (c) below, the Company shall submit to the SEC, within five
(5) Business Days after the Company learns that no review of a particular
Registration Statement will be made by the staff of the SEC or that the staff
has no further comments on a particular Registration Statement, as the case may
be, a request for acceleration of effectiveness of such Registration Statement
to a time and date not later than 48 hours after the submission of such
request.  If the Required Holders request
a shelf Registration Statement, the Company shall use commercially reasonable
efforts to keep such Registration Statement effective pursuant to Rule 415
at all times until the earlier of (i) the date as of which the Investors
may sell all of the Registrable Securities covered by such Registration
Statement without the volume limitations pursuant to Rule 144(e) (or
any successor thereto), (ii) such time as the Registrable Securities have
been sold pursuant to such Registration Statement, or (iii) two years from
the effectiveness of the first Registration Statement filed hereunder; provided
however, that after such two years if counsel to an Investor (which may
be in-house counsel) advises an Investor in writing that such Investor is
unable to freely sell Registrable Securities pursuant to Rule 144(k), then
the Company shall maintain an effective Registration Statement for the
Conversion Shares until clause (i) or (ii) is satisfied, but not to
exceed a period of up to an additional two years (together, the “Registration Period”) if such Investor has
continuously held such Conversion Shares (or the Notes relating thereto two
years from the date hereof).  The Company
shall take commercially reasonable efforts to ensure that each Registration
Statement (including any amendments or supplements thereto and prospectuses
contained therein) shall not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein, or necessary to
make the statements therein (in the case of prospectuses, in the light of the circumstances
in which they were made) not misleading.


 


(b)                                 The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and the
prospectus used in connection with such Registration Statement, which
prospectus is to be filed pursuant to Rule 424 promulgated under the
Securities Act, as may be necessary to keep such Registration Statement
effective at all times during the Registration Period, and, during such period,
comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities of the Company covered by such
Registration Statement until such time as all of such Registrable Securities
shall have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such Registration
Statement.  In the case of amendments and
supplements to a Registration Statement which are required to be 


 


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filed pursuant to this
Agreement (including pursuant to this Section 6(b)) by reason of the
Company filing a report on Form 10-Q, Form 10-K or any analogous
report under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company shall have
incorporated such report by reference into such Registration Statement, if
applicable, or, if necessary, shall file such amendments or supplements with
the SEC on the same day on which the Exchange Act report is filed which created
the requirement for the Company to amend or supplement such Registration
Statement.


 


(c)                                  The
Company shall (A) permit Legal Counsel to review and comment upon (i) a
Registration Statement at least five (5) Business Days prior to its filing
with the SEC and (ii) all amendments and supplements to all Registration
Statements (except for Annual Reports on Form 10-K, and Reports on Form 10-Q
and any similar or successor reports) within a reasonable number of days prior
to their filing with the SEC, and (B) not file any Registration Statement
or amendment or supplement thereto in a form to which Legal Counsel reasonably
and timely objects.  The Company shall
not submit a request for acceleration of the effectiveness of a Registration
Statement or any amendment or supplement thereto without the prior approval of
Legal Counsel, which consent shall not be unreasonably withheld.  The Company shall furnish to Legal Counsel,
without charge, (i) copies of any correspondence from the SEC or the staff
of the SEC to the Company or its representatives relating to any Registration
Statement, (ii) promptly after the same is prepared and filed with the
SEC, one copy of any Registration Statement and any amendment(s) thereto,
including financial statements and schedules, all documents incorporated
therein by reference, if requested by an Investor, and all exhibits and (iii) upon
the effectiveness of any Registration Statement, one copy, of the prospectus
included in such Registration Statement and all amendments and supplements
thereto.  The Company shall reasonably
cooperate with Legal Counsel in performing the Company’s obligations pursuant
to this Section 6.


 


(d)                                 The
Company shall furnish to each Investor whose Registrable Securities are
included in any Registration Statement, without charge, (i) promptly after
the same is prepared and filed with the SEC, at least one copy of such
Registration Statement and any amendment(s) thereto, including financial
statements and schedules, all documents incorporated therein by reference, if
requested by an Investor, all exhibits and each preliminary prospectus, (ii) upon
the effectiveness of any Registration Statement, ten (10) copies of the
prospectus included in such Registration Statement and all amendments and
supplements thereto (or such other number of copies as such Investor may
reasonably request) and (iii) such other documents, including copies of
any preliminary or final prospectus, as such Investor may reasonably request
from time to time in order to facilitate the disposition of the Registrable
Securities owned by such Investor.


 


(e)                                  The
Company shall use commercially reasonable efforts to (i) register and
qualify, unless an exemption from registration and qualification applies, the
resale by Investors of the Registrable Securities covered by a Registration
Statement under such other securities or “blue sky” laws of all said
jurisdictions in the United States where Investors intend to sell Shares, (ii) prepare
and file in those jurisdictions, such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof during the Registration Period,
(iii) take such other actions as may be necessary to maintain such
registrations and qualifications in effect at all times during 


 


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the Registration Period, and (iv) take
all other actions reasonably necessary or advisable to qualify the Registrable
Securities for sale in such jurisdictions; provided, however,
that the Company shall not be required in connection therewith or as a
condition thereto to (x) qualify to do business in any jurisdiction where
it would not otherwise be required to qualify but for this Section 6(e) or
where qualification necessitates undue time or expense, (y) subject itself
to general taxation in any such jurisdiction, or (z) file a general
consent to service of process in any such jurisdiction.  The Company shall promptly notify Legal
Counsel and each Investor who holds Registrable Securities of the receipt by
the Company of any notification with respect to the suspension of the
registration or qualification of any of the Registrable Securities for sale
under the securities or “blue sky” laws of any jurisdiction in the United
States or its receipt of actual notice of the initiation or threatening of any
proceeding for such purpose.


 


(f)                                    The
Company shall notify Legal Counsel and each Investor in writing of the
happening of any event, as promptly as practicable after becoming aware of such
event, as a result of which the prospectus included in a Registration
Statement, as then in effect, includes an untrue statement of a material fact
or omission to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (provided  that in no event shall
the Company deliver such notice to the Investors without the Investors’ prior
consent if such notice contains any material, nonpublic information), and,
subject to Section 6(r), promptly prepare a supplement or amendment to
such Registration Statement to correct such untrue statement or omission, and
deliver ten (10) copies of such supplement or amendment to Legal Counsel
and each Investor (or such other number of copies as Legal Counsel or such
Investor may reasonably request).  The
Company shall also promptly notify Legal Counsel and each Investor in writing (i) when
a prospectus or any prospectus supplement or post-effective amendment has been
filed, and when a Registration Statement or any post-effective amendment has
become effective (notification of such effectiveness shall be delivered to
Legal Counsel and each Investor by facsimile or e-mail on the same day of such
effectiveness and by overnight mail), (ii) of any request by the SEC for
amendments or supplements to a Registration Statement or related prospectus or
related information, and (iii) of the Company’s reasonable determination
that a post-effective amendment to a Registration Statement would be
appropriate.


 


(g)                                 The
Company shall use commercially reasonable efforts to prevent the issuance of
any stop order or other suspension of effectiveness of a Registration
Statement, or the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction and, if such an order or suspension is
issued, to obtain the withdrawal of such order or suspension at the earliest
possible moment and to notify Legal Counsel and each Investor who holds
Registrable Securities being sold of the issuance of such order and the
resolution thereof or its receipt of actual notice of the initiation or threat
of any proceeding for such purpose.


 


(h)                                 The
Company agrees that, if Goldman (together with any affiliate of Goldman, the “GS Entities” or the “GS Entity”) or any GS Entity could
reasonably be deemed to be an “underwriter,” as defined in Section 2(a)(11)
of the Securities Act, in connection with any registration of the Company’s
securities of any GS Entity pursuant to this Agreement, and any amendment or
supplement thereof (any such registration statement or amendment or supplement
a “GS Underwriter Registration Statement”),
then the Company will cooperate with such GS Entity in allowing such GS Entity
to conduct customary “underwriter’s due 


 


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diligence” with respect to the
Company and satisfy its obligations in respect thereof.  In addition, at Goldman’s request, the
Company will use commercially reasonable efforts to cause its auditor or
counsel to furnish to Goldman, on the first date of the effectiveness of the GS
Underwriter Registration Statement (i) a letter, dated such date, from the
Company’s independent certified public accountants in form and substance as is
customarily given by independent certified public accountants to underwriters
in an underwritten public offering, addressed to Goldman, and (ii) an
opinion, dated as of such date, of counsel representing the Company for
purposes of such GS Underwriter Registration Statement, in form, scope and
substance as is customarily given in an underwritten public offering,
including, without limitation, a standard “10b-5” statement for such offering,
addressed to Goldman; such comfort letter, legal opinion and/or 10b-5 statement
shall be furnished to Goldman (A) at no additional cost to Goldman if they
are already provided to another party in connection with a GS Underwriter
Registration or (B) at Goldman’s expense if such comfort letter, legal
opinion and/or 10b-5 statement are not otherwise being provided in connection
with a GS Underwriter Statement.  The
Company will also permit legal counsel to Goldman to review and comment upon
any such GS Underwriter Registration Statement at least five (5) business
days prior to its filing with the SEC and all amendments and supplements to any
such GS Underwriter Registration Statement within a reasonable number of days
prior to their filing with the SEC and not file any GS Underwriter Registration
Statement or Amendment or supplement thereto in a form to which Goldman’s legal
counsel reasonably and timely objects.


 


(i)                                     The
Company shall use commercially reasonable efforts either to (i) cause all
of the Registrable Securities covered by a Registration Statement to be listed
on each securities exchange on which securities of the same class or series
issued by the Company are then listed, if any, if the listing of such
Registrable Securities is then permitted under the rules of such exchange,
or (ii) secure designation and quotation of all of the Registrable
Securities covered by a Registration Statement on the American Stock Exchange
or (iii) if, despite the Company’s commercially reasonable efforts to
satisfy the preceding clauses (i) or (ii) the Company is unsuccessful
in satisfying the preceding clauses (i) or (ii), to secure the inclusion
for quotation on The Nasdaq Capital Market for such Registrable Securities and,
without limiting the generality of the foregoing, to use its best efforts to
arrange for at least two market makers to register with the U.S. Financial
Industry Regulatory Authority (formerly the National Association of Securities
Dealers Inc.) as such with respect to such Registrable Securities.  The Company shall pay all fees and expenses
in connection with satisfying its obligation under this Section 6(i).


 


(j)                                     The
Company shall cooperate with the Investors who hold Registrable Securities
being offered and, to the extent applicable, facilitate the timely preparation
and delivery of certificates (not bearing any restrictive legend) representing
the Registrable Securities to be offered and resold pursuant to a Registration
Statement and enable such certificates to be in such denominations or amounts,
as the case may be, as the Investors may reasonably request and registered in
such names as the Investors may request.


 


(k)                                  If
requested by an Investor, the Company shall (i) as soon as practicable
incorporate in a prospectus supplement or post-effective amendment such
information as an Investor reasonably requests to be included therein relating
to the sale and distribution of Registrable Securities, including, without
limitation, information with respect to the number of Registrable Securities
being offered or sold, the purchase price being paid therefor and any other 


 


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terms of the offering of the
Registrable Securities to be sold in such offering; (ii) as soon as
practicable make all required filings of such prospectus supplement or
post-effective amendment after being notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment; and (iii) as
soon as practicable, supplement or make amendments to any Registration
Statement if reasonably requested by an Investor holding any Registrable
Securities.


 


(l)                                     The
Company shall use commercially reasonable efforts to cause the Registrable
Securities covered by a Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to consummate the disposition of such Registrable Securities.


 


(m)                               The
Company shall make generally available to its security holders as soon as
practical, but not later than ninety (90) days after the close of the period
covered thereby, an earnings statement (in form complying with, and in the
manner provided by, the provisions of Rule 158 under the Securities Act)
covering a twelve (12)- month period beginning not later than the first day of
the Company’s fiscal quarter next following the effective date of a
Registration Statement.


 


(n)                                 The
Company shall otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC in connection with any
registration hereunder.


 


(o)                                 Within
two (2) Business Days after a Registration Statement which covers
Registrable Securities is declared effective by the SEC, the Company shall
deliver, and shall cause legal counsel for the Company to deliver, to the
transfer agent for such Registrable Securities (with copies to the Investors
whose Registrable Securities are included in such Registration Statement)
confirmation that such Registration Statement has been declared effective by
the SEC.


 


(p)                                 Notwithstanding
anything to the contrary herein, at any time the Company may delay filing the
Registration Statement or amendment or supplement thereto or the disclosure of
material, non-public information concerning the Company, if, in the good faith
opinion of the Board of Directors, the disclosure of which at the time would be
seriously detrimental to the Company and its stockholders, (a “Grace Period”); provided, that
the Company shall promptly (i) notify the Investors in writing of the
existence of material, non-public information giving rise to a Grace Period (provided
that in each notice the Company will not disclose the content of such
material, non-public information to the Investors without the prior written
consent of the Investors) and the date on which the Grace Period will begin,
and (ii) notify the Investors in writing of the date on which the Grace
Period ends; and, provided  further, that the aggregate days in
the Grace Periods shall not exceed ninety (90) days during any three hundred
sixty five (365) day period (an “Allowable
Grace Period”).  For purposes
of determining the length of a Grace Period above, the Grace Period shall begin
on and include the date the Investors receive the notice referred to in clause (i) and
shall end on and include the later of the date the Investors receive the notice
referred to in clause (ii) and the date referred to in such notice.  The provisions of Section 6(g) hereof
shall not be applicable during the period of any Allowable Grace Period.  Upon expiration of the Grace Period, the
Company shall again be bound by the first sentence of Section 6(f) with
respect to the information giving rise thereto 


 


10

















 


unless such material,
non-public information is no longer applicable. 
Notwithstanding anything to the contrary, the Company shall cause its
transfer agent to deliver unlegended Common Shares to a transferee of an
Investor in accordance with the terms of the Securities Purchase Agreements in
connection with any sale of Registrable Securities with respect to which an
Investor has otherwise complied with the requirements therein and entered into
a contract for sale, and delivered a copy of the prospectus included as part of
the applicable Registration Statement, prior to the Investor’s receipt of the
notice of a Grace Period and for which the Investor has not yet settled.


 


(q)                                 In
the event of an underwritten public offering, any participant in the offering
shall be required to enter into an underwriting agreement under the terms and
conditions reasonably negotiated between the Company and the managing
underwriter.  All Investors proposing to
distribute their securities through such underwriting shall (together with the
Company) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.  Notwithstanding any other provision of Section 6
herein, if the managing underwriter determines in its reasonable discretion
that the success of the offering will be jeopardized without a limitation on
the number of shares to be underwritten, the managing underwriter may in its
reasonable discretion limit the Registrable Securities or other securities to
be distributed through such underwriting pro rata, and if necessary, exclude
all selling stockholders, to the extent that other stockholders of the Company
that have registration rights have been similarly limited.  If any Investor disapproves of the terms of
any such underwriting, such Investor may elect to withdraw therefrom by written
notice to the Company and the managing underwriter.


 


7.                                       Obligations
of the Investors.


 


(a)                                  At
least five (5) Business Days prior to the first anticipated filing date of
a Registration Statement, the Company shall notify each Investor in writing of
the information the Company requires from each such Investor if such Investor
elects to have any of such Investor’s Registrable Securities included in such
Registration Statement.  It shall be a
condition precedent to the obligations of the Company to complete the
registration pursuant to this Agreement with respect to the Registrable
Securities of a particular Investor that such Investor shall furnish to the
Company such information regarding itself, the Registrable Securities held by
it and the intended method of disposition of the Registrable Securities held by
it as shall be reasonably required in accordance with the Securities Act to
effect the effectiveness of the registration of such Registrable Securities and
shall execute such documents in connection with such registration as the
Company may reasonably request.


 


(b)                                 Each
Investor, by such Investor’s acceptance of the Registrable Securities, agrees
to cooperate with the Company as reasonably requested by the Company in
connection with the preparation and filing of any Registration Statement
hereunder, unless such Investor has notified the Company in writing of such
Investor’s election to exclude all of such Investor’s Registrable Securities
from such Registration Statement.


 


(c)                                  Each
Investor agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 6(g) or the
first sentence of 6(f), such Investor will immediately discontinue disposition
of Registrable Securities pursuant to any 


 


11

















 


Registration Statement(s) covering
such Registrable Securities until such Investor’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(g) or
the first sentence of 6(f) or receipt of notice that no supplement or
amendment is required.  Notwithstanding
anything to the contrary, the Company shall cause its transfer agent to deliver
unlegended certificates representing Common Shares to a transferee of an
Investor in accordance with the terms of the Securities Purchase Agreements in
connection with any sale of Registrable Securities with respect to which an
Investor has entered into a contract for sale prior to the Investor’s receipt
of a notice from the Company of the happening of any event of the kind
described in Section 6(g) or the first sentence of 6(f) and for
which the Investor has not yet settled.


 


(d)                                 Unless
exempt from the prospectus delivery requirements of the Securities Act,
pursuant to Rule 172 of the Securities Act, in connection with sales of
Registrable Securities pursuant to the Registration Statement, each Investor
covenants and agrees that it will comply with the prospectus delivery
requirements Act as applicable to it in connection with sales of Registrable
Securities pursuant to the Registration Statement.


 


8.                                       Expenses
of Registration.


 


Except as
otherwise provided herein, all reasonable expenses, other than underwriting
discounts and commissions, incurred in connection with registrations, filings
or qualifications pursuant to Sections 2, 3, 4, 5 and 6, including, without
limitation, all registration, listing and qualifications fees, printers and
accounting fees, and fees and disbursements of counsel for the Company shall be
paid by the Company.


 


9.                                       Indemnification.


 


In the event
any Registrable Securities are included in a Registration Statement under this
Agreement:


 


(a)                                  To
the fullest extent permitted by law, the Company will, and hereby does,
indemnify, hold harmless and defend each Investor, the directors, officers,
members, partners, employees, agents, representatives of, and each Person, if
any, who controls any Investor within the meaning of the Securities Act or the
Exchange Act (each, an “Indemnified Person”),
against any losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, reasonable attorneys’ fees, amounts paid in settlement or
expenses, joint or several, (collectively, “Damages”)
incurred in investigating, preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the foregoing by or
before any court or governmental, administrative or other regulatory agency,
body or the SEC, whether pending or threatened, whether or not an indemnified
party is or may be a party thereto (“Indemnified
Damages”), to which any of them may become subject insofar as such
Damages (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: 
(i) any untrue statement or alleged untrue statement of a material
fact in a Registration Statement or any post-effective amendment thereto or in
any filing made in connection with the qualification of the offering under the
securities or other “blue sky” laws of any jurisdiction in which Registrable
Securities are offered (“Blue Sky Filing”),
or the omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements 


 


12

















 


therein not misleading, (ii) any
untrue statement or alleged untrue statement of a material fact contained in
any preliminary prospectus if used prior to the effective date of such
Registration Statement, or contained in the final prospectus (as amended or
supplemented, if the Company files any amendment thereof or supplement thereto
with the SEC) or the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in the light of the
circumstances under which the statements therein were made, not misleading, or (iii) any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any other law, including, without limitation, any state
securities law, or any rule or regulation thereunder relating to the offer
or sale of the Registrable Securities pursuant to a Registration Statement (the
matters in the foregoing clauses (i) through (iii) being,
collectively, “Violations”).  Subject to Section 9(c), the Company
shall reimburse the Indemnified Persons, promptly as such expenses are incurred
and are due and payable, for any reasonable legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any
such Damages.  Notwithstanding anything
to the contrary contained herein, the indemnification agreement contained in
this Section 9(a):  (i) shall
not apply to Damages incurred by an Indemnified Person arising out of or based
upon a Violation which occurs in reliance upon and in conformity with
information furnished in writing to the Company by such Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto, if such
prospectus was timely made available by the Company pursuant to Section 6(d);
(ii) with respect to any preliminary prospectus, shall not inure to the
benefit of any such Person from whom the Person asserting any such Damages
purchased the Registrable Securities that are the subject thereof (or to the
benefit of any Person controlling such Person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
in the prospectus, as then amended or supplemented, if such prospectus was
timely made available by the Company pursuant to Section 6(d), and the
Indemnified Person was promptly advised in writing not to use the incorrect
prospectus prior to the use giving rise to a violation and such Indemnified
Person, notwithstanding such advice, used it or failed to deliver the correct
prospectus as required by the Securities Act and such correct prospectus was
timely made available pursuant to Section 6(d); (iii) shall not be
available to the extent such Damages are based on a failure of the Investor to
deliver or to cause to be delivered the prospectus made available by the
Company, including a corrected prospectus, if such prospectus or corrected
prospectus was timely made available by the Company pursuant to Section 6(d);
and (iv) shall not apply to amounts paid in settlement of any Damages if
such settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld or delayed.  Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Indemnified
Person and shall survive the transfer of the Registrable Securities by the
Investors pursuant to Section 12.


 


(b)                                 In
connection with any Registration Statement in which an Investor is
participating, each such Investor agrees to severally and not jointly
indemnify, hold harmless and defend, to the same extent and in the same manner
as is set forth in Section 9(a), the Company, each of its directors, each
of its officers who signs the Registration Statement and each Person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act (each, an “Indemnified Party”),
against any Damages or Indemnified Damages to which any of them may become
subject, under the Securities Act, the Exchange Act or otherwise, insofar as
such Damages or actions or proceedings whether commenced or threatened in
respect thereof arise out of or are based upon any Violation, in each case to
the extent, and only to the extent, 


 


13

















 


that such Violation occurs in
reliance upon and in conformity with written information furnished to the
Company by such Investor expressly for use in connection with such Registration
Statement or any post-effective amendment thereof or any prospectus contained
therein; and, subject to Section 9(c), such Investor will reimburse any
legal or other expenses reasonably incurred by an Indemnified Party in
connection with investigating or defending any such Damages as promptly as such
expenses are incurred and are due and payable; provided, however,
that the indemnity agreement contained in this Section 9(b) and the
agreement with respect to contribution contained in Section 10 shall not
apply to amounts paid in settlement of any Damages if such settlement is
effected without the prior written consent of such Investor, which consent
shall not be unreasonably withheld or delayed; provided, further,
however, that the Investor shall be only liable under this Section 9(b),
together with any amount of contribution contained in Section 10, for only
that amount of Damages or Indemnified Damages as does not exceed the net
proceeds to such Investor as a result of the sale of Registrable Securities
pursuant to such Registration Statement. 
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall survive
the transfer of the Registrable Securities by the Investors pursuant to Section 12.  Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 9(b) with
respect to any preliminary prospectus shall not inure to the benefit of any
Indemnified Party if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected on a timely basis in the
prospectus, as then amended or supplemented.


 


(c)                                  Promptly
after receipt by an Indemnified Person or Indemnified Party under this Section 9
of notice of the commencement of any action or proceeding (including any
governmental action or proceeding) involving Damages, such Indemnified Person
or Indemnified Party shall, if a claim for Damages in respect thereof is to be
made against any indemnifying party under this Section 9, deliver to the
indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
reasonably satisfactory to the indemnifying party and the Indemnified Person or
the Indemnified Party, as the case may be; provided, however, that an
Indemnified Person or Indemnified Party shall have the right to retain its own
counsel with the reasonable fees and expenses of not more than one counsel for
such Indemnified Person or Indemnified Party to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the indemnifying
party, the representation by such counsel of the Indemnified Person or
Indemnified Party and the indemnifying party would be inappropriate due to
actual or potential differing interests between such Indemnified Person or
Indemnified Party and any other party represented by such counsel in such
proceeding.  In the case of an
Indemnified Person, legal counsel referred to in the immediately preceding
sentence shall be selected by the Company, subject to the reasonable consent of
the Investors holding at least a majority in interest of the Registrable
Securities included in the Registration Statement to which the Damages
relates.  The Indemnified Party or
Indemnified Person shall cooperate fully with the indemnifying party in
connection with any negotiation or defense of any such action or Damages by the
indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the Indemnified Party or Indemnified Person which
relates to such action or Damages.  The
indemnifying party shall keep the Indemnified Party or Indemnified Person
reasonably apprised at all times as to the status of the defense or any
settlement negotiations with 


 


14

















 


respect thereto.  No indemnifying party shall be liable for any
settlement of any action, claim or proceeding effected without its prior
written consent, provided, however, that the indemnifying party
shall not unreasonably withhold, delay or condition its consent.  No indemnifying party shall, without the
prior written consent of the Indemnified Party or Indemnified Person, consent
to entry of any judgment or enter into any settlement or other compromise which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party or Indemnified Person of a release from all
liability in respect to such Damages or litigation.  Following indemnification as provided for
hereunder, the indemnifying party shall be subrogated to all rights of the
Indemnified Party or Indemnified Person with respect to all third parties,
firms or corporations relating to the matter for which indemnification has been
made.  The failure to deliver written notice
to the indemnifying party within a reasonable time of the commencement of any
such action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to
the extent that the indemnifying party is prejudiced in its ability to defend
such action.


 


(d)                                 The
indemnification required by this Section 9 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or Indemnified Damages are incurred.


 


(e)                                  The
indemnity agreements contained herein shall be in addition to (i) any
cause of action or similar right of the Indemnified Party or Indemnified Person
against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to the law.


 


10.                                 Contribution.


 


To the extent
any indemnification by an indemnifying party is prohibited or limited by law,
the indemnifying party agrees to make the maximum contribution with respect to
any amounts for which it would otherwise be liable under Section 9 to the
fullest extent permitted by law; provided, however, that:  (i) no Person involved in the sale of
Registrable Securities which Person is guilty of fraudulent misrepresentation
(within the meaning of Section 14(f) of the Securities Act) in
connection with such sale shall be entitled to contribution from any Person
involved in such sale of Registrable Securities who was not guilty of
fraudulent misrepresentation; and (ii) contribution by any seller of
Registrable Securities, together with any amount under Section 9, shall be
limited in amount to the net amount of proceeds received by such seller from
the sale of such Registrable Securities pursuant to such Registration
Statement.


 


11.                                 Reports
Under the Exchange Act.


 


Following the
Effective Date of any Registration Statement filed in accordance with this
Agreement (but not before), with a view to making available to the Investors
the benefits of Rule 144 promulgated under the Securities Act or any other
similar rule or regulation of the SEC that may at any time permit the
Investors to sell securities of the Company to the public without registration
(“Rule 144”), the Company agrees to:


 


(a)                                  make
and keep public information available, as those terms are understood and
defined in Rule 144;


 


15














 


(b)                                 use
reasonable, diligent efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities Act
and the Exchange Act so long as the Company remains subject to such
requirements and the filing of such reports and other documents is required for
the applicable provisions of Rule 144; and


 


(c)                                  furnish
to each Investor so long as such Investor owns Registrable Securities, promptly
upon written request, (i) a written statement by the Company, if true,
that it has complied with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act, (ii) a copy of the most recent annual
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested
to permit the Investors to sell such securities pursuant to Rule 144
without registration.


 


12.                                 Assignment
of Registration Rights.


 


The rights
under this Agreement shall be automatically assignable by the Investors to any
transferee of all or any portion of at least 100,000 shares of such Investor’s
Registrable Securities if:  (i) the
Investor agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the Company within ten (10) days
after such assignment; (ii) the Company is, within ten (10) days
after such transfer or assignment, furnished with written notice of (a) the
name and address of such transferee or assignee, and (b) the securities
with respect to which such registration rights are being transferred or
assigned; (iii) immediately following such transfer or assignment the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act and applicable state securities laws; (iv) at
or before the time the Company receives the written notice contemplated by
clause (ii) of this sentence the transferee or assignee agrees in writing
with the Company to be bound by all of the provisions contained herein; and (v) such
transfer shall have been made in accordance with the applicable requirements of
the Securities Purchase Agreements and applicable laws.


 


13.                                 Amendment
of Registration Rights.


 


Provisions of
this Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Required
Holders; provided, however, that no such amendment or waiver
hereunder may materially and adversely affect the economic interest of an
Investor hereunder without the written consent of such Investor.  Any amendment or waiver effected in
accordance with this Section 13 shall be binding upon each Investor and
the Company.  No such amendment shall be
effective to the extent that it applies to less than all of the holders of the
Registrable Securities.  No consideration
shall be offered or paid to any Person to amend or consent to a waiver or
modification of any provision of any of this Agreement unless the same
consideration also is offered to all of the parties to this Agreement.


 


14.                                 Waiver
by Goldman Under Prior Agreement.


 


Notwithstanding
anything to the contrary contained herein, effective upon the Closing under the
Securities Purchase Agreement and the execution of this Agreement, Goldman
hereby waives any default by the Company under the Prior Agreement.


 


16

















 


15.                                 Miscellaneous.


 


(a)                                  A
Person is deemed to be a holder of Registrable Securities whenever such Person
owns or is deemed to own of record such Registrable Securities.  If the Company receives conflicting
instructions, notices or elections from two or more Persons with respect to the
same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from such record owner of such
Registrable Securities.


 


(b)                                 Any
notices, consents, waivers or other communications required or permitted to be
given under the terms of this Agreement must be in writing and will be deemed
to have been delivered:  (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by
facsimile (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or (iii) one
Business Day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the same.  The addresses and facsimile numbers for such
communications shall be:


 


If to the
Company:


 


Vyyo Inc.


6625 The Corners Parkway


Suite 100


Norcross, Georgia 30092


Telephone:  (678) 282-8000


Facsimile:  (770) 447-2405


Attention:  General Counsel


 


With a copy
to:


 


Warner Norcross & Judd LLP


900 Fifth Third Center


111 Lyon Street, NW


Grand Rapids, Michigan 49503


Telephone:  (616) 752-2137


Facsimile:  (616) 222-2137


Attention:  Stephen C. Waterbury


 


If to an
Investor, to its address and facsimile number set forth on the Schedule of
Investors attached hereto, with copies to such Investor’s representatives as
set forth on the Schedule of Investors, or to such other address and/or
facsimile number and/or to the attention of such other Person as the recipient
party has specified by written notice given to each other party five (5) days
prior to the effectiveness of such change. 
Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender’s facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a courier or overnight courier service
shall be rebuttable evidence of personal service, receipt by facsimile or
receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.


 


17

















 


(c)                                  Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as a
waiver thereof.


 


(d)                                 All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State of New York or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other than the
State of New York.  Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper.  Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party at the address for
such notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by
law.  If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.  EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.


 


(e)                                  This
Agreement, the other Transaction Documents (as defined in the Securities
Purchase Agreements) and the instruments referenced herein and therein
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and thereof.  There
are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein and therein. 
This Agreement, the other Transaction Documents and the instruments
referenced herein and therein supersede all prior agreements and understandings
among the parties hereto with respect to the subject matter hereof and thereof.


 


(f)                                    Subject
to the requirements of Section 12, this Agreement shall inure to the benefit
of and be binding upon the permitted successors and assigns of each of the
parties hereto.


 


(g)                                 The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.


 


(h)                                 This
Agreement may be executed in identical counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
agreement.  This Agreement, once executed
by a party, may be delivered to the other party hereto by facsimile
transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement.


 


18

















 


(i)                                     Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as any other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby.


 


(j)                                     All
consents and other determinations required to be made by the Investors pursuant
to this Agreement shall be made, unless otherwise specified in this Agreement,
by the Required Holders.


 


(k)                                  The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent and no rules of strict construction
will be applied against any party.


 


(l)                                     This
Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns, and is not for the benefit of, nor
may any provision hereof be enforced by, any other Person.


 


(m)                               The
obligations of each Investor hereunder are several and not joint with the
obligations of any other Investor, and no provision of this Agreement is
intended to confer any obligations on any Investor vis-à-vis any other
Investor.  Nothing contained herein, and
no action taken by any Investor pursuant hereto, shall be deemed to constitute
the Investors as a partnership, an association, a joint venture or any other
kind of entity, or create a presumption that the Investors are in any way
acting in concert or as a group with respect to such obligations or the
transactions contemplated herein.


 


19

















 


IN WITNESS WHEREOF,
each Investor and the Company have caused their respective signature page to
this Amended and Restated Registration Rights Agreement to be duly executed as
of the date first written above.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
  VYYO
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wayne H.
  Davis

  
	
   

  	
   

  	
  Name: 

  	
  Wayne H.
  Davis

  
	
   

  	
   

  	
  Title: 

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INVESTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  GOLDMAN
  SACHS INVESTMENT

  
	
   

  	
  PARTNERS
  MASTER FUND, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Goldman
  Sachs Investment Partners GP, LLC,

  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nick
  Advani

  
	
   

  	
   

  	
  Name: 

  	
  Nick Advani

  
	
   

  	
   

  	
  Title: 

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SYNTEK
  CAPITAL AG

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s Franco Franca

  
	
   

  	
   

  	
    Name: Franco Franca

  
	
   

  	
   

  	
    Title: CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Paolo Giacometti

  
	
   

  	
   

  	
    Name: Paolo Giacometti

  
	
   

  	
   

  	
    Title:
  CFO

  



 

















 


SCHEDULE OF INVESTORS


 


	
  Names and
  Addresses:

  
	
   

  
	
  Goldman
  Sachs Investment Partners Master Fund, L.P.

  
	
  Attn: Nick
  Advani

  
	
  One New York
  Plaza

  
	
  New York,
  New York 10004

  
	
  Facsimile:
  212-346-3124

  
	
  Telephone:
  212-902-4934

  
	
   

  
	
  with a copy
  to:

  
	
   

  
	
  Goldman
  Sachs Investment Partners Master Fund, L.P.

  
	
  Attn: Rashid
  Alvi

  
	
  One New York
  Plaza

  
	
  New York, NY
  10004

  
	
  Facsimile:

  
	
  Telephone:

  
	
   

  
	
  and

  
	
   

  
	
  Proskauer
  Rose LLP

  
	
  1585
  Broadway

  
	
  New York,
  New York 10036

  
	
  Attention:
  Stuart Bressman, Esq.

  
	
  Facsimile:
  (212) 969-3000

  
	
  Telephone:
  (212) 969-2900

  
	
   

  
	
  Syntek
  Capital AG

  
	
   

  
	
  Syntek
  Capital AG

  
	
  Zugspitzstrasse
  15

  
	
  82049
  Pullach – Germany

  
	
  Telephone: +498955277201

  
	
  Facsimile: +498955277405

  
	
  Attention: Paolo Giacometti

  
	
  Email: paolo.giacometti@syntekcapital.com

  
	
   

  
	
  with a copy
  to:

  
	
   

  
	
  Jeff Neurman

  
	
  Syntek
  Capital

  
	
  939 Union
  Street, #6A

  
	
  Brooklyn, NY
  11215

  
	
  Email: jeff.neurman@syntekcapital.com